Challenging Government Prerogatives: SCOTUS Reconsiders Deference to Executive Agencies

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Challenging Government Prerogatives: SCOTUS Reconsiders Deference to Executive Agencies

[00:00:00] Joe Selvaggi: This is Hubwonk. I’m Joe Selvaggi. Welcome to Hubwonk, a podcast of Pioneer Institute, a think tank in Boston. At the center of our Founders’ design for creating limited but effective government was to separate power among three branches. Laws are to be written by elected legislators, implemented by executive branch agencies, and reviewed by impartial judges where necessary.

[00:00:24] This judicial oversight is intended to check agency actions to ensure that power is limited only to that which is authorized by law. But where laws may be unclear or offer some degree of discretion, the judiciary branch may be asked to interpret the intent of the law and the limits of its authority.

[00:00:42] For the last 40 years, in cases where laws were unclear, courts have deferred to government agency expertise and judgment — a convention referred to as the Chevron Doctrine. A case now before the Supreme Court, Loper Bright Enterprises v. Raimondo, seeks to challenge that agency deference, arguing that vague statutes ought to require government restraint.

[00:01:03] This week, the Court heard oral arguments in the case in which a small family-run fishing firm is challenging the National Marine Fisheries Service’s prerogative to impose costly monitors that were not expressly authorized by Congress. The outcome of the case could dismantle the 40-year-old Chevron Doctrine and forever change the balance of power between our branches of government and the people. What are the facts in the case? And what can we learn from the powerful arguments presented in this week’s oral arguments? My guest today is Senior Fellow and Director of Constitutional Studies at the Manhattan Institute, Ilya Shapiro.

[00:01:38] Attorney Shapiro has written extensively on constitutional issues in the Supreme Court, including several books and more than 500 amicus curiae briefs, including one joined by other legal scholars for the Loper Bright case. He will share with us the case facts and offer us his firsthand account of the recent oral arguments.

[00:01:56] He will offer background for the evolution of the Chevron Doctrine in modern jurisprudence and offer his views on the possible effects for the 40-year-old convention to be partially or entirely overruled. When I return, I’ll be joined by constitutional scholar Ilya Shapiro. Okay, we’re back. This is Hubwonk. I’m Joe Selvaggi, and I’m now pleased to be joined by a Hubwonk listener favorite, Senior Fellow and Director of Constitutional Studies at the Manhattan Institute, Ilya Shapiro. Welcome back to Hubwonk, Ilya.

[00:02:24] Ilya Shapiro: Good to be back with you.

[00:02:26] Joe Selvaggi: All right. Thanks for joining me. This is fresh from attending the oral arguments at the Supreme Court yesterday in the case of Loper Bright Enterprises v. Raimondo, a case that argues really — it sounds relatively innocuous — it argues on behalf of a small family owned fishing firm. But one that touches on one of the bedrock, legal conventions of the past 40 years. But I’m — I don’t want to jump in too fast. I want, for the benefit of our listeners who are not following this every day and don’t get the chance to go to oral arguments, let’s explain to our listeners what are the facts in the case of the Loper Bright case?

[00:02:58] Ilya Shapiro: Yeah, this is, an, a very interesting case. It was combined with another case, Relentless. The main difference is that, Justice Jackson, the newest justice, is recused from Loper Bright, but not from Relentless. So they added that so in case they had a 4 to 4, that they would have a tiebreaker, but in any event, this is a group of New Jersey fishermen, represented by Supreme Court super lawyer, Paul Clement, are challenging a rule that requires the fishermen not only to allow government monitors to ride along on their boats to ensure compliance with fishing regulations, but to pay for the privilege.

[00:03:39] Now, if that sounds vaguely familiar, it was one of the plot points of the Oscar-winning film Coda about a deaf fishing family in Massachusetts. And this is a significant cost, more than $700 per day at sea, and this industry funding requirement, which is not explicitly authorized by the relevant statute, the Magnuson-Stevens Fisheries Management Act, but it would have a devastating economic impact on the herring fleet. These are small owner-operators, different than the Pacific fleet — the dangerous catch, the big tuna, the big prize fish for which this law was written, but now has been applied by NOAA, part of the Commerce Department, that disproportionately affects small businesses and historic fishing communities.

[00:04:28] The D. C. Circuit, the Court of Appeals sitting in D.C. that looks at government agencies, affirmed the lower court, the district court, in favor of the government applying Chevron deference. That is this doctrine that, when a federal law is ambiguous, judges are to defer to the agency’s interpretation of it so long as that interpretation is reasonable or not arbitrary and capricious as the legal term of art goes. And the Manhattan Institute filed, I filed a brief, both at the cert stage, and then at the merits where we were joined by several illustrious professors, Richard Epstein, Todd Zywicki, Gus Hurwitz, Jeffrey Manny, arguing that the court needs to overhaul the Chevron deference regime, because this experiment in rebalancing the relationship between administration by the civil service, by the bureaucracy, and judicial review, it’s failed.

[00:05:24] Tt’s led to agency overreach and practical results that are all over the place and a diminution of Congress. So, often this debate over Chevron deference is billed as, who decides: Thee agencies? Are they expert enough to decide? Are these policy choices or judges? Because it’s legal issues.

[00:05:45] But Congress, who’s actually doing the legislation that’s supposed to be applied here, that’s supposed to be where we get our law, is, its power is diminished because it passes the buck. It legislates these broad laws — at best. Sometimes it doesn’t legislate at all and just waits for the agencies just to put a new gloss on existing law. And that way they don’t have to face congressmen and senators. They don’t have to face political accountability when their constituents are hurt by some of these regulations, are put out and then deferred to by the courts.

[00:06:20] Joe Selvaggi: You gave us aa lot to think about there. That’s a great overview. I want to pick apart each of those elements. So let’s get back to the facts and the case. We have a small fishing, as you say, New Jersey family run fishing firm. I think it was something like $721, which represents something 20 percent of their net take. So it’s an enormous fee, but you and I, we both agree government fees, government regulations are generally bad, but let’s stay. I want to play devil’s advocacy. Okay. We’ve got to, okay, it’s national marine fishery service. They’re in charge of making sure fisheries don’t overfish. What’s wrong with, let’s say, the Congress saying to an executive agency, make sure fishermen don’t overfish and then the agency saying, okay, so as to do that, we’re going to put a monitor on each boat and charge that boat for that individual to make sure they’re not overfishing. What’s fundamentally wrong with an executive branch agency imposing a fee, in theory, vaguely authorized by Congress.

[00:07:10] Ilya Shapiro: The “vaguely authorized by Congress” is doing a lot of work in that question. If Congress legislated to the effect that, we need to have monitors and you can charge the regulated businesses for those monitors, then we wouldn’t be here. Then it would be all clear. And the agency is just implementing what Congress has asked. And maybe the agency would deter — would set the fee or something like that. But here the statute is silent. There are provisions for these monitors and for fees that are capped at 3 percent for West Coast and Alaskan, Northwestern fishing enterprises that work differently than these small businesses on the East Coast, with regard to which the statute is silent.

[00:07:51] And so basically, the agency has said, “Since we’re empowered to, have monitors and have these fees for West Coast fisheries, that means Congress also intends for us to be able to have this same sort of power and charge even more as a percent for these East Coast fisheries.” Now, the question isn’t whether that’s good policy, or whether the monitors are the best way to prevent overfishing or whatever the goals are of fishing management, but who decides and whether Congress has authorized it, because in our system of government we don’t allow the executive just to make law on its own, whether that law is good or bad.

[00:08:29] And this brings us back to the whole argument over Chevron and why it came about the growth of the administrative state. The theory is, and I think this is in part right, that Congress can’t be expected to legislate in such a big country every little bit of every little regulation for the programs, the regulatory schemes that it has. They, Congress, are not experts in biology, in economics,setting how many parts per billion of arsenic and drinking water is okay. That probably isn’t the subject of the law, that’s properly delegated to agencies to figure out, but then you have some questions that aren’t charged in a Congress isn’t saying figure out how many parts per billion of arsenic is allowed.

[00:09:14] Instead, they say, you should have good policy. Is that a sensible delegation? There’s no courts of so-called intelligible principle there. And so Congress is just generally passing the buck so egregiously that the agency is just legislating for itself. Or as here, Congress is silent, right?

[00:09:32] That’s why the question is some, in this particular case, one articulation of the question is, what happens when Congress is silent? What kind of power does an agency have to fill that silence.

[00:09:44] Joe Selvaggi: You point out the best of, I think, aspect of this case, which is, as you say, the law was silent. So it was left to the executive agency to interpret it and where it’s silent. It said, okay, we decide that monitors are necessary. And hence, there’s the tension, the lawsuit effectively says, look, this isn’t constitutional. This is not — I think you point out the essence of the question — which is we need separation of powers. We have a legislative branch that makes the laws and executive branch that executes the laws where there’s ambiguity or silence the Court may step in. Well, we’re going to talk about Chevron, but at a high level, as you mentioned, in a big country like ours, given laws often, are either intentionally or ambiguous, what is the role of the Court? And ultimately, as you say, it’s not what’s the best policy, but who decides what is the actual law as it’s written? The judiciary has a role here. We’ve got a law. We’ve got an executive branch in theory in good faith trying to interpret that. How does the judiciary interpret where the executive agency has overstepped the law and or where what to do when the law is silent?

[00:10:52] Ilya Shapiro: Luckily, there’s actually a statute that directs the judiciary — how it’s supposed to treat administrative law. It’s called the Administrative Procedure Act. It was passed in the ‘40s, as the modern administrative state was starting to really get online after the New Deal. And one of its sections, section 706 of the APA, came up quite a bit in yesterday’s argument because it directs courts to decide issues of law.

[00:11:19] So, again, not policy, and there can be a dispute: Is this a policy decision that’s left to the executive branch or is this a legal issue? And Chevron arose, ultimately 40 years ago — so 40 years into the APA, Chevron arose in 1984, to say that as long as what agency interpretations of the law, as long as they’re reasonable, courts should defer. And that didn’t happen in a vacuum. What was happening is 180 degrees away, you could argue, from what’s happening now in that in the ‘70s and especially the early ‘80s, the left-leaning D. C. Circuit was taking upon itself to make policy decisions. It then began, thwarting President Reagan’s deregulatory agenda.

[00:12:07] So ultimately, the Republican lawyers in that administration were arguing, judges, you should stay out of this. You should defer to the executive agencies who after all are accountable to the White House, who — the president was elected by the people rather than these unelected judges.

[00:12:23] And as this came out in argument yesterday, statutory interpretation has changed over the years. We’re all textualists now. It’s hard to imagine now, but in the ‘70s and ‘80s, questions of statutory interpretation, you’d read these judicial opinions that would barely touch on the text of the actual statute. They were trying to operationalize the spirit of the law or the intent of the law or what they think is good policy or something like that. And that’s not generally now how even the most left-wing judges go about their role. There are these canons of statutory interpretation, etc. But regardless, even if Chevron itself was supposed to be neutral, that is, an agency could have a conservative policy end, it could have a liberal policy end, and Chevron just says it’s for the agency to determine judges stay out of it. What’s happened is this one way ratchet of the accretion of power in the agency. So again, regardless of whether — what the political valence is of the regulations or the policies that the agencies might try to promulgate — and there’s at times a whipsaw effect, depending on whether it’s a Democratic or Republican administration — but the end result is a skewing of power away from Congress towards the executive branch, judges sitting on their hands, deferring, and letting the executive branch punt away its power, letting the, sorry, letting Congress punt away its power, letting the executive branch aggrandize itself in that way and to solve that collective action problem, there are now these challenges and that’s the crux of this issue. If Chevron went away, then judges in effect would have to do the statutory interpretation every time and go back to that question that you just asked: Isn’t it reasonable to interpret this particular law to give the relevant agency the power to have monitors and charge fees for that? It may or may not be, but with Chevron going away, it’s not just deferring to the agency, it’s a judge making that interpretive call.

[00:14:21] Joe Selvaggi: Interestingly, again, for historians, Chevron actually was, as you say, an act, it was a business-friendly decision to protect a power company from the, let’s say, predation of the EPA. So it was turned on its head. The reason I make it this point is, I think —

[00:14:36] Ilya Shapiro: And Justice Gorsuch’s mother was the administrator of the EPA at the time!

[00:14:40] Joe Selvaggi: That’s a good trivia piece. But I think, one of the cases in the oral arguments that I listened to I think to the uninitiated listener, what they may favor, the decision of executive agencies because they quote unquote have the expertise. But if you look back on history. The executive agents are highly driven by politics, meaning it whipsaws every four years that the experts change their mind every four years. So the implication that, given that Congress is so politicized, we really ought to defer to the experts suggest that the experts are consistent. But the fact that the experts are different experts every four years suggests it really — most of these questions are at their core political and as such need to be resolved in the political branch which is, you know, Article I, which is Congress, which is if we make effectively political decisions in a monolithic or ideologically monolithic executive branch, that is a question of power. Essentially, you decide which king you want, and the essentially the judicial branch goes along with the decision, am I going off the rails?

[00:15:35] Ilya Shapiro: No, that’s right. That kind of public choice analysis, I think is apt. And Paul Clement, there was a period in yesterday’s argument where he was just talking about the dynamic of congressional incentives to legislate or not to resolve, controversial issues to forge compromises, how that’s affected by the existence of Chevron, where for one thing, you know that agencies are going to make the decisions on those controversial issues. So Congress can keep its hands clean. And on the other hand, half of Congress is going to be members of part of the party that also controls the executive branch at any given time. And so they can achieve their policy goals by calling up their buddy, the deputy under-administrator of whatever agency and say, hey, we’d love to have this happen. We can’t legislate it. It’s too tricky. I’d get primaried, my buddy there — Why don’t you just issue a rule to accomplish that goal? And so there’s collusion that way, giving away the power  because of these, this kind of  dynamic and removing Chevron would force Congress to legislate if it’s an important enough issue and to resolve those kinds of controversies. I think it’s a rebalancing of power and not necessarily, to the benefit of either party. It’s more of an institutional rebalancing, forcing Congress to maintain more of its power, and therefore be more accountable for these regulatory decisions.

[00:16:56] Joe Selvaggi: Yeah, in reading your amicus brief, you made several of the same points you’re making. There’s one more that we really, I want to touch on, which is noting that we have a concept of stare decisis, meaning good or bad Chevron exists out there in the world. And there’s a lot of I’m gonna use a term called reliance — it has a big meaning, but I just mean that the world is relying on this sort of methodology, that to challenge something that’s been around for 40 years. And I think part of the site in the oral argument, 70 Supreme Court cases reference Chevron and 1,700 lower-court cases reference Chevron. Stare decisis suggests that if we thought it was a good idea in the past, but let’s stick with it. Let’s not rock the boat. Do you think that’s a strong argument to say, look, if the Supreme Court’s looking at this and saying, look, Chevron probably is too much deference to administrative agencies, given the world as it works, we really ought to be a little more strict about what powers we give for these executive agencies. Do you think getting rid of Chevron, if that’s even on the table, would be so disruptive that it should not even be visited?

[00:17:55] Ilya Shapiro: So just a refresher for your listeners on stare decisis. It’s the doctrine that says sometimes the societal costs of correcting an error in an earlier judicial opinion are not worth it, that getting that right would disrupt too much of, I don’t know, how people organize their lives or their financial structures of various companies or whatever the case may be. And this gets discussed whenever there’s a high-profile precedent in the crosshairs. Roe v. Wade most famously. Are people relying on the ability to have an abortion, but other cases as well.

[00:18:29] This court has a reputation in the popular media of overturning more precedent. That’s not actually factually correct. Previous courts, the Rehnquist Court and even more the Berger Court, the Warren Court going back to the ‘60s, would overturn precedent much more. They were generally lower profile than Roe v. Wade or some of the others. Citizens United, for example, overturned a 20-year-old precedent. So here we have that issue: Would overturning Chevron all of a sudden destabilize our entire regulatory system, because people, agencies have come to use a Chevron and rely on it?

[00:19:05] And the answer to that, I think, and this is the, what the lawyers representing the fishermen, argued, is that Chevron after all is an interpretive holding. Yeah, there’s a practical holding about, stationary source emissions and Clean Air Act regulations. That was the technical legal thing at issue in the Chevron case. But this idea of judicial deference is an interpretive methodology and nobody other than agency lawyers rely on that. People, whether it’s companies, whether it’s individuals, aren’t relying on judicial interpretive methods. They’re relying on the bottom-line holding. Can I have this kind of stationary source emission?

[00:19:47] Can I employ this worker for so long without paying overtime? Can I expect to have the available ability of abortion? However you phrase those again, practical reliance interest as you’re structuring your life. It’s — Chevron is not that. and so I don’t think, even if some cases in the future might turn out a different way, if judges are making those interpretive calls, rather than simply deferring to agencies, that doesn’t mean that reliance is upended, and I have a hard time that this court — which, when there is a majority to think that a case was wrongly decided — has not hesitated to overrule. I don’t think stare decisis in the end going to be an obstacle here.

[00:20:32] Joe Selvaggi: So you were at the oral arguments yesterday. You understand your case very well. But, of course, you talked about the very talented affordable a little bit earlier. The government solicitor general we’ve talked about her many times on this podcast with reverence and respect. You watched her make her case. She took the government’s case. What did you think about her arguments? And were there any ideas or questions that suggested you may either have missed something or that may have persuaded you that your case isn’t as clear as you make it out?

[00:21:03] Ilya Shapiro: There’s a lot of discussion of what’s ambiguity because Chevron deference only comes into play when the statute is ambiguous in the first place, when there’s room for discretion of the agency, they could interpret it in manner A, B, or C. It’s not clear. It’s ambiguous. Judges then go to what lawyers call step two of Chevron and look at whether that choice, the interpretive choice the agency makes, is reasonable.

[00:21:30] and Prologar basically said, ‘Look, if lower courts are getting it wrong, if you think the Chevron standard is unclear, then clarify further.’ Because when there are statutes that are ambiguous and they do come up, because not because Congress is necessarily incompetent or their draftsmen or what have you, but because 10 years from now, who knows what can happen and how a given law is going to apply. You can’t foresee everything plus the limits of language. And precision and things like this, not to mention political considerations that came up. Like you couldn’t, you didn’t have the votes to be more precise about a certain thing, so you left it ambiguous purposely, and by definition ambiguous, because that’s the only thing that’s the only way you can get the legislation passed. And there was a lot of discussion, how do you define ambiguity? How do you get past that step 1 of, okay, I can’t figure this out. It’s ambiguous. I’ll then go to step 2 and see whether what the agency did is reasonable. I don’t think the majority of the justices were satisfied with that kind of answer. Just as Gorsuch put it, again and again, we have to issue further clarifications.

[00:22:36] In my eventual press statement, I said that extending the fishing metaphors  puns that were rife in this case, that all of these various clarifications and footnotes and addendums and codicils on Chevron in the last 40 years are like so many barnacles on the jurisprudence, that the whole vessel is listing and it’s going to sink the lower courts.

[00:22:56] I think a majority of the court is there. They’re grappling with does that mean we need to overturn Chevron? Does it mean we have to have a radically different, as came up awkwardly, should we “Kisorize” Chevron? Referring to the Kisor case, which five, six years ago, rather than overturning the deference that judges give to agency reinterpretations of their own regulations in a case called Auer — rather than throwing that out, the Court rewrote a new standard and tightened the grip and said only when they’re acting as scientists, not lawyers, and only once they’ve jumped through these hoops, will there be some modicum of deference there?

[00:23:35] So maybe they’ll do something like that. And that’s what the argument ended with when, when, Solicitor General Prelogar was talking with Justice Kagan, who asked her, well, if we’re going to “Kisorize” Chevron, what would that look like? And Prelogar had some points about that. Now, if that is the worst case scenario for the plaintiffs, I think they’re doing well.

[00:23:53] If the court’s liberals are really thinking about we need to minimize the damage by completely throwing out and tightening the Chevron standard that, I think is at least an improvement.

[00:24:03] Joe Selvaggi: Interestingly, you’ve mentioned a few times about liberals and conservatives or this whole issue has a political valence —

[00:24:10] Ilya Shapiro: Which you should, I mentioned, because Chevron is just about deference and deferring, you could defer to liberals, you could defer to conservatives, but the way that it’s played out is that it’s a one way ratchet in terms of the aggrandizement of power, the growth of the bureaucracy, which in and of itself has a slight left wing or progressive skew.

[00:24:28] Joe Selvaggi: Yes, that’s sure. And of course, in reading about this case, I read New York Times or NPR-type editorials, which are going into convulsion saying that this is essentially an attack on government itself. I wonder if, as you say, it is theoretically neutral, in this sort of dystopian future. Let’s imagine, just for the sake of argument, let’s stipulate that Donald Trump becomes president of the United States in November or January, I suppose. Essentially, all the decisions of the executive branch, now that’s been empowered, can be interpreted through his lens, right? We can — all these deferential laws to executive branch, and the executive branch is managed by the president, they would all be seen through his lens, right? This is, you know, it cuts both ways. Our friends on the left should have certain concerns about having all this power vested in a committee. Thank you. unaccountable exec, you know, administratively unaccountable branch.

[00:25:21] Ilya Shapiro: Yeah, you would think and there’s some aspect of that, that the partisans switch sides on the proper interpretations of executive power when power changes in the White House. In the last, 10-15 years, presidents of both parties haven’t done too well at the Supreme Court in terms of, when it gets to the Supreme Court on major issues.

[00:25:41] But again, this is not about whether the federal government has the power to do X, Y, or Z, this is not Obamacare. Can Congress pass a law requiring you to buy health insurance? That’s not this. It’s, instead, imagine Congress passed a law called, Everybody Should Be Healthy Act, and the, Secretary of HHS then imposes an individual mandate, we’ve had that kind of answer in major questions. The major questions doctrine has arisen to deal with a lot of these problems in administrative law and how courts have handled it. And just in the last couple of years, we’ve seen big reversals of executive regulatory actions, whether it’s in student loan forgiveness, eviction moratoria during COVID. West Virginia v. EPA clean power plan again, regulatory, not something passed by Congress, which it’s declined to pass again and again. And the same thing would happen if Trump is elected. you’re right now. We have to distinguish between executive orders like the, the travel ban that Trump signed in his first week of his, of his term last time, and a regulation issued by an agency, but, they’re still subject to the APA.

[00:26:54] They’re still subject to arbitrary and capricious review, and things like that. So these doctrines of deference, I think, do have that kind of salience and, I think Trump was known as a deregulatory president, maybe even in spite of himself, because he’s like for executive personal power, but also wants to deconstruct the administrative state, or at least Steve Bannon did at the time and the types of more traditional Republican lawyers who staffed the various agencies did at the time.

[00:27:22] Joe Selvaggi: Yes, it’s again, my mind rushes immediately to the code regulations, which essentially was  public health agencies were mandated to keep everybody healthy and took that and ran with it. And we had lots of social distancing, mask mandates, vaccine mandates, businesses closed, all kinds of things that really were never legislated. They just essentially was giving large latitude to executive agencies with very broad mandate.

[00:27:45] Ilya Shapiro: And note that the state orders largely unless they discriminated against religious groups versus secular, but just state orders were not successfully challenged, generally speaking. There was one in Wisconsin that violated state administrative law because not the right agency executed the order. But, all of the high-profile COVID rulings that went against restrictions and mandates and things like that, were on these administrative law grounds, not because Congress legislated it and overstepped constitutional limits, but because OSHA or the CDC did so.

[00:28:19] Joe Selvaggi: Yeah, indeed. Again, for our listeners, imagine a government and executive agency that you don’t prefer having more power and unaccountability. So let’s, let’s shift. Let’s say, okay, we’ve, what are the possible outcomes? You alluded to it earlier. We have Chevron being challenged. Of course, the court can say, thanks but let’s keep the status quo. They can throw out Chevron entirely or they can, let’s say, decide in some partial way to say, okay, look, some deference is appropriate because laws are, by their nature, ambiguous in some ways, but there’s going to be some rigid standard for interpreting ambiguity. What’s the range of outcomes here?

[00:28:54] Ilya Shapiro: I think you’ve just given it. Yeah. Overturn Chevron, no deference. Just, there was some talk of what’s called Skidmore deference, which is a misnomer. Skidmore is a case from the ‘40s that said that if the government’s argument in its brief is convincing, then accept it. Which is like saying, read all the briefs, be very careful about this, and go with the best argument. Yeah, okay, that’s the nature of judging, which is kind of an odd sort of thing. So yeah, they’ll either overturn Chevron, say judges, treat administrative law cases like you would, this came up especially from Justice Kavanaugh, any other case where an agency isn’t involved, you’re interpreting a statute. You just do your best. Some of these cases are hard, but it’s not, you know, Justice Kagan talked about, what do you do when the law runs out? you’re paid the, you’re paid the medium-sized bucks to figure out those hard interpretive questions. So, that’s one result. The opposite result would be like, no, it would be too chaotic.

[00:29:47] If we overturn Chevron and there’d be too much litigation or what have you, we do need to defer to the experts? We’ll just keep the status quo. And then, there’s the Kisor rising, if you will, rewriting the standard altogether. It’s still nominally Chevron, but it’s tightened, it’s completely different. Call it the Relentless Chevron standard, if you will. Those are really the three broad outcomes that are possible.

[00:30:11] Joe Selvaggi: And so our listeners will learn about the verdict here or the decision. It’s not a verdict. It’s not a case. It’s a decision. In sometime in the summer, is that right ?

Ilya Shapiro: By the end of June.

[00:30:19] Joe Selvaggi: Yeah. And this summer I think something else is perhaps coming out. You are working on a new book. I think the last time you were, maybe not the last time, but we covered your earlier book, Judicial Disorder.

Ilya Shapiro: Supreme Disorder.

Joe Selvaggi: Oh, Supreme Disorder, I’m sorry. Supreme Disorder. Can you tell our listeners A, what your new book is about, and B, if they have the possibility of pre-ordering it, or what can you tell us?

[00:30:45] Ilya Shapiro: Yeah, so, it’s coming out September 3, which is the day after Labor Day. Books are always released on Tuesdays. For some reason, that’s just the case. And summer releases are no good unless you have a potboiler paperback or something for beach reading. But people are on vacation. This year we also have the political conventions and all that you don’t want to compete with. Back to school is fitting, for my book, which looks at the illiberal takeover of legal education. The new title, they just changed the title again, is Lawless, the Miseducation of America’s Future Leaders. And it weaves in my story at Georgetown, the investigation, the cancellation attempt, all that, into a narrative about threats to the legal profession, why the infiltration of illiberal theory, critical theory, DEI structures and the like, over-bureaucratization of law schools, getting away from truth seeking and the rule of law, why that’s particularly dangerous for the legal profession and the leaders of, lawyers become the guardians, the gatekeepers of our legal and political institutions, which is a big deal, as well as,telling the story of the growth of non-teaching staff,at law schools and in higher education more broadly, combined with the roaring back of these postmodern critical theories. We thought that they had died in the ‘80s and ‘90s. Now they’ve come back and they’ve been instantiated in part because of the rise of social media and in part because of inflection points that have addled our political culture, especially youth culture, Ferguson, the election of Donald Trump, the pandemic, the murder of George Floyd, all of these things have come together to have a radically different experience and culture and structures than when I was in law school 20 years ago or college 25 years ago. And just to clarify, or to be more precise, this is not the latest in a decade-long series of complaints from conservatives about the left wing or hippie takeover of the faculty lounge in Berkeley in the ‘60s or something. This is the illiberal menace that goes against classical liberal values like free speech, academic freedom, due process equality under the law. Really scary stuff. And I just sent my last revisions my agent tells me, but my editor tells me is the last substantive revisions last week. So hopefully we’re going to be, I’ll have a preorder link to send you and then not to a distant future.

[00:33:08] Joe Selvaggi: Indeed. That sounds exciting. I hope you’ll consider coming back and talking about your book a little more when it does release. But I share — I think it’s very timely — I think what you say, this illiberal trend, it’s not left and right. You know, we’ve gone from truth seeking to somehow, quote unquote, truth enforcement. And I say to my friends who are either academic

Ilya Shapiro: From education to activism.

Joe Selvaggi: Activism, yeah. And yeah. and when I say to my friends who are ideologically, naturally leaning towards being activists, I’d say, look, people respect you, either if you’re in the medical field or the legal field or academia, not because you’re smart. You are smart, but that’s not why you get respect. It’s not because you work hard, because you do work hard, but that’s not it. It’s your integrity, your willingness to approach issues with an open mind and debate and engage and respect the other side, not to lock the other guy up for having, being wrong handed. So I think this is a wonderful topic in line with, I think, the zeitgeist of our time, we really are trying to examine what the heck’s going wrong with our trusted professions, we do trust. The law, but I don’t know for how much longer. Anyway, I think, thank you. Sorry for the editorializing at the end. I appreciate you coming on.

[00:34:12] Ilya Shapiro: Thank you. It’s your show. You can rant if you want to!

[00:34:16] Joe Selvaggi: Thank you very much. I appreciate you taking your time. Good luck. I look forward to your book. I will pre-order and I will ask you, invite you back to talk about it in late in the summer.

[00:34:24]  Ilya Shapiro: Okay. Thanks, Joe.

Joe Selvaggi: This has been another episode of Hubwonk. If you enjoyed today’s show, there are several ways to support Hubwonk and Pioneer Institute. It would be easier for you and better for us if you subscribed to Hubwonk on your iTunes podcatcher. It would make it easier for others to find us if you offer a five-star rating or offer a favorable review. We’re grateful if you share Hubwonk with others. If you have ideas for me or suggestions for future episode topics, you’re welcome to email me at Please join me next week for a new episode of Hubwonk.

Joe Selvaggi engages in a conversation with legal scholar Ilya Shapiro from the Manhattan Institute regarding the Loper Bright Enterprises Supreme Court case that questions the Chevron Doctrine. This doctrine instructs judges to defer to government agencies in situations where laws are silent or unclear.


Ilya Shapiro is a senior fellow and director of constitutional studies at the Manhattan Institute. Previously he was executive director and senior lecturer at the Georgetown Center for the Constitution, and before that a vice president of the Cato Institute and director of Cato’s Robert A. Levy Center for Constitutional Studies. Shapiro is the author of Canceling Justice: The Illiberal Takeover of Legal Education (forthcoming 2024) and Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court (2020), coauthor of Religious Liberties for Corporations? (2014), and editor of 11 volumes of the Cato Supreme Court Review (2008-18). He has contributed to a variety of academic, popular, and professional publications, including the Wall Street JournalHarvard Journal of Law & Public Policy, Washington Post, Los Angeles TimesUSA TodayNational Review, and Newsweek. Shapiro has testified many times before Congress and state legislatures and has filed more than 500 amicus curiae “friend of the court” briefs in the Supreme Court.